United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 December 12, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-10142
                       USDC No. 6:04-CR-40-ALL


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JESSE RAY WESTBROOK,

                                     Defendant-Appellant.

                         --------------------

             Appeal from the United States District Court
                  for the Northern District of Texas

                         --------------------

O R D E R:

     Jesse Ray Westbrook pleaded guilty to possession of cocaine

with intent to manufacture cocaine base.    Westbrook’s plea

agreement contained a waiver-of-appeal provision.      Appointed

counsel for Westbrook has requested leave to withdraw and has

filed a brief as required by Anders v. California, 

(1967).   If, on appeal, the Government does not seek to enforce

an appeal waiver, the waiver is not binding.       United States v.

Story, 

, 231 (5th Cir. 2006).       However, in this case

the Government has not had an opportunity to address Westbrook’s

appellate waiver.
                              O R D E R
                            No. 05-10142
                                 -2-

     “[I]t is defense counsel’s obligation to ascertain and

certify that the Government would rely on the defendant’s

appellate waiver before moving to withdraw.”   United States v.

Acquaye, ___ F.3d ___, 

at *2 (5th Cir. June 8,

2006).   Accordingly, the motion to withdraw is DENIED without

prejudice to its renewal.   Westbrook’s counsel is directed to

file a new Anders brief stating the Government’s position with

respect to the waiver or a brief on the merits of this appeal

within 30 days of the date of this order.   See 

Eugene Davis
                                       W. EUGENE DAVIS
                                       UNITED STATES CIRCUIT JUDGE